David Millon sent along a response to my post "Corporate Law after Hobby Lobby":
A couple of brief thoughts on your remarks about the freedom of shareholders in closely held corporations to depart from a corporate law profit maximization requirement. First, I had not realized that you considered profit maximization to be a default rather than mandatory rule. Your view would appear to be inconsistent with at least some of the few judicial precedents involving closely held firms that profit maximization proponents cite in support of their view that corporate law mandates that corporate objective, namely the eBay case and also Dodge v. Ford (although, as we explain in our article, that case does not actually mandate profit maximization). Second, I don¹t see the legal basis for distinguishing closely held from public corporations on this point. The law could draw such a distinction, but I don¹t see where it has. Not in the corporate statutes and not in case law either. There may be policy reasons for such a distinction and as a practical matter it is probably impossible for shareholders qua shareholders in a public corporation to redefine the firm’s purpose, but it¹s hard to see where the closely held/public distinction exists in the law. Finally, to be clear, certainly a profit maximization default would be preferable to a mandatory rule, but we don’t think that even a default rule exists on this issue.
